Opinion
February 26, 2001.
Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered December 16, 1999, which, in an action for goods sold and delivered, granted defendant's motion pursuant to CPLR 3126(3) to strike plaintiff's complaint and for judgment on the issue of plaintiff's liability on defendant's counterclaims for breach of warranty, unanimously affirmed, with costs.
Before: Rosenberger, J.P., Nardelli, Andrias, Ellerin, Saxe, JJ.
Todd Strassberg, for plaintiff-appellant.
Jed R. Schlacter, for defendant-respondent.
As the motion court held, plaintiff's claim in opposition to the motion that the documents sought by defendant either no longer exist or were never kept in the first place is thoroughly undermined by plaintiff's principals' earlier deposition testimony that such documents do exist and indeed some were even examined subsequent to the commencement of the action. The inference is inescapable that at some point after the first of those depositions the documents in question were willfully destroyed in contumacious disobedience of the two court orders that directed their production (see, Siegman v. Rosen, 270 A.D.2d 14).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.